Court: No Immunity For Federal Agent Who Made Elderly Woman Stand In Urine-Soaked Pants For Two Hours While He Questioned Her

from the tough-on-(moon-related)-crime dept

The Ninth Circuit Appeals Court has affirmed a lower court's stripping of a federal officer's qualified immunity in a… moon rock sting case. This is a thing. Relatives and friends of NASA personnel have received what they believe are gifts from them -- items containing moon rock pieces, or heat shield fragments, or whatever. The problem here is the government believes it owns anything related to its exploration missions.

[I]f you have or even claim to have any lunar material, or some other piece of Apollo memorabilia, the government is quite likely to treat you as a criminal if it finds out—even if, as in this case, it had no proof at all that the suspect got it illegally (or even that it was what she claimed).

The "she" here is Joann Davis, whose late husband worked on the Apollo program. He was given two Apollo souvenirs by Neil Armstrong -- paperweights containing pieces of a moon rock and a heat shield, respectively. Davis was looking to sell the items to a collector to defray her son's medical expenses. She asked NASA for assistance, which turned out to be a mistake. NASA sent the feds after her.

Davis may have told the government what she was up to, but the government didn't return the favor. Instead, it decided to engage in sting operation, because that's obviously the best way to deal with a 74-year-old woman trying to pay medical expenses -- and who had made the government fully aware of her NASA-related items and her planned sale of them.

"Jeff," the government's undercover man posing as an interested buyer, met with Davis at a Denny's. Outside were six armed federal agents. The only person with Davis was her 70-year-old friend, Paul Cilley. From the opinion [PDF]:

Once Davis, Cilley, and “Jeff” were seated in a booth inside the restaurant and exchanged pleasantries, Davis placed the paperweights on the table. “Jeff” said he thought the heat shield was worth about $2,000. Shortly thereafter, Conley announced himself as a “special agent,” and another officer’s hand reached over Davis, grabbed her hand, and took the moon rock paperweight. Simultaneously, a different officer grabbed Cilley by the back of the neck and restrained him by holding his arm behind his back in a bent-over position. Then, an officer grabbed Davis by the arm, pulling her from the booth. At this time, Davis claims that she felt like she was beginning to lose control of her bladder. One of the officers took her purse. Both Cilley and Davis were compliant. Four officers escorted them to the restaurant parking lot for questioning after patting them down to ensure that neither was armed.

If this itself seems excessive, well… hold the government's beer.

Davis claims that she told officers twice during the escort that she needed to use the restroom, but that they did not answer and continued walking her toward an SUV where Conley was waiting. Davis subsequently urinated in her clothing. Although their accounts differ in some respects, Conley and Davis agree that he knew she was wearing urine-soaked pants as he interrogated her in the restaurant parking lot. Davis claims that she was not allowed an opportunity to clean herself or change her clothing, despite communicating to Conley several times that she was “very uncomfortable.”

Conley is Norman Conley, the federal agent whose immunity remains stripped. For whatever reason, Conley appeared to believe it wasn't enough to have both the disputed property in hand and a fully-compliant suspect who had already informed NASA about her plans to sell them.

Conley then proceeded to question Davis for one-and-a-half to two hours, during which time Davis remained standing in the same place.

In urine-soaked pants, lest we forget.

Conley apparently felt he just wasn't threatening enough. He brought more muscle for the urine-soaked, Denny's parking lot interrogation of a 74-year-old woman.

[W]hile Conley questioned her, another officer wearing a flack jacket stood behind her and pushed her each time she shifted her weight or stepped backwards. During the questioning, Conley kept Davis’s purse and car keys and told her repeatedly that “they still really want to take you in,” and that she needed to give him more information before he could release her. She was kept from going to her car. At least ninety minutes had passed when Conley told Davis she was free to leave.

Here's the depressing coda:

After the sting operation was complete and NASA lunar experts were able to confirm the moon rock’s authenticity, Conley opened a full investigation. The investigation was closed when the U.S. Attorney in Orlando, Florida, formally declined to prosecute Davis. Davis’s son died seven months after the incident.

As the appeals court points out, Conley's own admissions cancel out his qualified immunity defense.

At the time of the detention, Conley was aware of several facts that color the reasonableness of his actions. First, Conley knew that Davis was a slight, elderly woman, who was then nearly seventy-five years old and less than five feet tall. Second, he knew that Davis lost control of her bladder during the search and was wearing visibly wet pants. Third, he knew that Davis and Cilley were unarmed and that the search warrant had been fully executed by the time Davis was escorted to the parking lot. Fourth, Conley knew that Davis had not concealed possession of the paperweights, but rather had reached out to NASA for help in selling the paperweights. Finally, because all but the first of the phone calls between Davis and “Jeff” were recorded, Conley knew the exact content of most of those conversations, including that Davis was experiencing financial distress as a result of having to raise grandchildren after her daughter died, her son was severely ill and required expensive medical care, and Davis needed a transplant. Those conversations also revealed Davis’s desire to sell the paperweights in a legal manner and her belief that she possessed them legally because they were a gift to her late husband.

If Conley didn't want to be held accountable for civil liberties violations, the court says he probably shouldn't have violated them so thoroughly.

Because the moon rock paperweight had been seized and both Davis and Cilley had already been searched for other weapons and contraband, Conley had no law enforcement interest in detaining Davis for two hours while she stood wearing urine-soaked pants in a restaurant’s parking lot during the lunch rush. This is precisely the type of “unusual case” involving “special circumstances” that leads us to conclude that a detention is unreasonable. Conley’s detention of Davis, an elderly woman, was unreasonably prolonged and unnecessarily degrading.

There are multiple ways this could have been handled and Conley chose the path most likely to result in a civil rights lawsuit. Maybe he thought Davis would never go so far as to sue him. Maybe this is just how Agent Conley handles everything: with as much force and intimidation as possible, even if nothing about the situation warrants it. Whatever the case, Conley will now have to face Davis' allegations in court, with no shield in front of him. Hopefully, he'll find the experience to be nearly as uncomfortable as what he put Joann Davis through.

Re:

Good for her if she gets more money, but will the officer learn anything from this? Even if she goes through with a lawsuit and even if she wins, the settlement will be paid by the police department (not the officer), which in turn will be paid by taxpayers.

The officer needs to be fired with a "dishonorable discharge" so he can't work in any law enforcement jobs and stripped of any pension he might have. Then he might learn not to abuse his power.

burn him to the ground

Frankly:

how large is the chance that such an agent would be using an appropriate amount of force in any situation?

This rather sounds like an attack dog in the need of a handler. Or the only playbook the department works with is the good cop/bad cop routine and they were short an actor. And it does not appear like the department had anybody on cue for that role so telling one bad apple in the barrel "watch it, now" is unlikely to make an overwhelming difference.

Re: Frankly:

So none of the seven agents were able to provide a restraining force (good cop)? I don't buy it. I think the problem is endemic in law enforcement because so many of them see everything through a lens of 'Us vs Them' instead of 'I pledged to uphold the Constitution of the United States". Which is sad.

Re:

Exactly. People have been prosecuted for assaulting an officer by bleeding on them after the cops beat them drawing blood. Others have been charged for causing the cops to break bones as they get punched in the head. No one struck a cop, yet the cops own actions causing damage draws further charges of assaulting the cops.

Re: You are being unfair here.

That was my thought. The second agent was belligerently assaulting an elderly lady in wet pants. For two hours. For no reason - what, she was going to take a swing at Conley? Make a break for it? Why shouldn't he lose qualified immunity.

Plus - needed to sell a priceless heirloom to pay medical bills? How quaint. Speaking as a Canadian, I've heard that happens in countries other than the civilized ones, where health care is free.

And... don't leave us in suspense -did she get her possessions back? They were after all a gift from a legend, who presumably had the right to gift them?

Re: Re: You are being unfair here.

The law is still a little murky on that point, but the general stance of the government is that he did not have the right to gift them, as the items belonged to NASA rather than to any astronauts or other employees. To the best of my knowledge, there's never been a definitive case on the issue.

Re: What about the good apples?

One thing the general public seems to have forgotten, is there are all kinda of laws on the books about racketeering, accomplices, conspiracies and so forth. None of those laws contain an exemption for law enforcement personnel.

If you rob a liquor store at gunpoint, get away, then the next day you go over to a friend's house to watch a football game and he provides snacks, that friend is now your accomplice to the robbery. Because he gave material aid and comfort (snacks) to a wanted felon, he's now equally guilty under the law and equally subject to the 5-10 year prison sentence you are facing.

The fact that your friend didn't know you robbed a liquor store is irrelevant. The fact your friend didn't know he was giving material comfort to a criminal? Irrelevant. He was never within ten miles of the crime scene at any time during his entire life? Irrelevant. He's an accomplice after the fact and that's that.

Police officers routinely stand around and watch, providing silent support, as their fellow officers commit crimes. They provide armed on-call backup without asking a single question about whether the use of force is justified. If one cop shoots, they all shoot. Cops brag in the locker room just as much as anyone does in any other job, and cops overhear all kinds stories of illegal actions -- and remain silent.

If a few handfuls of Cheetos and a glass of beer is enough to turn an innocent person into a wanted felon, then any of those things in the previous paragraph absolutely would do the same -- after all, police are not exempted from those laws.

The general public has the bizarre notion that as long as a cop is not the primary actor in a crime, they remain a good cop -- but neither the spirit nor the letter of the law supports that view.

Treat people with dignity

The officers should be more polite. Instead of saying "me and these other officers are going to beat you to a bloody pulp" they should say "we are going to re-accommodate you. That's what we do.". All levels of government are great at using euphemisms. Just like brutal regimes we were fighting against in the previous century.

Because people who have stolen things often call the former owner to ask the best way to sell the items.

They often use elderly go betweens to setup robberies at Dennys.

They sometimes say they have to pee so they can produce a secreted scud missile from their nether regions to wipe out the strike team.

And LEO's can't seem to understand how stupid actions like this don't do much for public relations. You call them for help - they shoot the dog.They get the wrong house - they flash bang a baby.A CI trying to avoid jail fingers you - they tear your entire home down, find nothing, walk away.

Perhaps its time to not let them stay up late watching cop shows where every other person is a criminal mastermind out to murder them.

Re: Re:

A few things needs to change...

NASA should have an official registry of items that are historical in nature that would EXCLUDE those persons on the registry from having this experience. It is crazy to think that Neil Armstrong's gift would cause the recipient this kind of harm in modern times.

Re: A few things needs to change...

Re: A few things needs to change...

What they have done is a very disrespectful slap in Neil Armstrong's face.

It is sad to see such ignorant people disrespect anyone, but to show such disrespect to someone who clearly deserves respect is quite troubling because at the same time they are demanding what they think is respect from everyone else.

These types of people do not understand what the word means. How could anyone respect these bad cops/agents/whatever they call themselves.

The really sad part is;

When I see a police car parked across the street, I feel more threaded than reassured. Supposedly my tax dollars are paying for a group of citizen policemen, and policewomen, to stand between me and the bad guys. Time has eroded that notion, and they are now about as welcome as the KGB, or the Gestapo.

Not a good reason

I hope Conley has to piss his pants many times in the near future. And whomever at NASA started this needs to face the consequences, as well. While I hate to see the NASA budget get dinged, they need to pay for this until it hurts them badly.

It's nice to know these nice altruistic men are out there, seeking justice for us all. I feel safe. No wait, I feel more likely to be belittled, judged, manhandled and degraded by a cop than to be helped by one.

Tell me its not true...

I read this this morning before going to work, and frankly, I had to read it twice. I´m from Denmark, and at 6 o´clock at the morning, I not quite awake before two cups of strong coffee and I was sure I had read this completely wrong.... So I read it again, and again, and again.... Now several hours later I´m still chocked about the whole story. First of all how could NASA react this way?? NASA is deeply responsible, and should be sued (Beyond hell!!)as well!! "Will the responsible guy stand out please?" It could have been so much easier to send a NASA representant to her home at the very first place! The NASA reaction is so out of proportions, one wonder really what these guys really jobs are.. Are we talking about the NASA or the NSA here? Did she dialed the wrong phone number? And now to the best part: Do american taxpayers really pay federal agencies (What are talking about here? CIA? FBI?) to put up that kind of operation?? "Hey folks we need some training around here. I´ve just heard about a granny selling moon dust. Strong stuff, people. Let´s get some action..." This whole thing looks like they were busting some drug dealers. Except they busted a poor old woman... I´m still chocked and horrified. Sorry for my poor English (I´m from Denmark) but somehow I had to react, try to get my feelings out about that whole stupid story....

Re: Tell me its not true...

"how could NASA react this way?"

I doubt it was an engineer or scientist at NASA that initiated this fiasco, more likely it was a middle management MBA who is desperately attempting to further their career - like those who disregarded the tech advice and launched Challenger anyway.

Re: Re: Tell me its not true...

Nothing to do with "desperately attempting to further their career".

There are rules. You don't get fired for following the rules. You might get fired for deciding not to follow the rules. Even if the rules are insane: if someone wants your job, breaking even the most asinine of rules will provide leverage.

Not as much the Nuremberg defense as the Milgram defense, and don't underestimate it.

Re: Re: Re: Re: Tell me its not true...

Desperation leads to last resort measures. Not interfering with procedure is just default behavior and has nothing to do with "desparately" attempting to further one's career. It's merely the path of least resistance and thinking.

And the lesson is...

Bad Apples

You do realize that most people use that expression wrong. As the old saying goes, it is "A few bad apples can spoil the bunch." That makes more sense, does it not? It also holds true as far as the police are concerned.